Norwalk Core v. Norwalk Redevelopment Agency Plaintiffs-Appellants' Brief

    Mm t&  States (Emirx rrf Appals
For the Second Circuit

No. 31761

NORWALK CORE, et al.,
Plaintiffs-Appellants,

against

NORWALK REDEVELOPMENT AGENCY, et al.,
Defendants-Appellees.

PLAINTIFFS-APPELLANTS’ BRIEF

L ubeee and L tjbell, 
Attorneys for Plaintiffs-Appellants.

Of Counsel:
J o nathan  W. L ubell , 
S teph en  L . P in e , 
D en n is  J . R oberts.



TABLE OF CONTENTS

Introduction ....................................    1
Statement ........................................................................  3

Proceedings ............................................................. 3
Parties .................................   4
Claims for Relief ................................................... 4
Injury ......................................................................  7
Relief Sought ......................................................... 7
Errors assigned ..................................................    8

Questions Presented ..................................................... 8
I—The Court below erred in failing to find juris­

diction over the constitutional and statutory 
claims ...................................................................... 9
1. Erroneous Statements in the Opinion Below 9
2. The Constitutional C la im .........................  13
3. The Statutory C la im ....................................   21
4. Plaintiffs’ standing under Title VI (Sec­

tion 601) of the Civil Rights Act of 1964 . . 24
II—The action was properly maintainable as a

class action ..........................................................  29
III— Even if this action were not properly brought

as a class action, the Court below erred in dis­
missing upon that basis .....................................  36

IV— The named association plaintiffs have stand­
ing to bring this action .............    39

V—Where the equitable jurisdiction of the Court 
is invoked the Court may fashion and grant 
any appropriate equitable relief and is not 
confined to the particular relief requested in 
the complaint .........    41

Conclusion ..................      46

PAGE



11

Table of Cases Cited
PAGE

Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963) . . 35
Baker v. Carr, 369 U.8. 186 (1962) .............................  17
Baldwin v. Morgan, 251 F.2d 780 (5th Cir. 1958) .. 20, 21

Bates v. Little Rock, 361 U.S. 516 .............................  39
Block v. Hirsh, 256 U.S. 135 (1921) .........................  15
Bowles v. Leithold, 60 F. Supp. 909 (E.D. Pa. 1945) 

aff’d 155 F.2d 124 (CCA 3rd Cir. 1945) ...............  42,43
Burton v. Wilmington Parking Authority, 363 U.S.

715 (1961) ..................................................................  17,20

Clark v. Thompson, 206 F. Supp. 539 (S.D.Miss. 
1962) aff’d 313 F.2d 637 (5th Cir. 1963) cert. den.
375 U.S. 9 5 1 ................................................................  38

Cooper v. Aaron, 358 U.S. 1 (1958) ............... .. 15,16

Dombrowski v. Pfister, 380 U.S. 479 .........................  40

Ethridge v. Rhoades (65 LRRM 2331, D.C.S.D. Ohio,
E.D. 1967) ..................................................................  18

Gart v. Cole, 263 F.2d 244 (2d Cir. 1959) cert, den.
359 U.S. 978 (1959) .........................................8, 22,23,41n

Geiger v. First-Tray National Bank & Trust Co., 30 
F.2d 7 (CCA 6th Cir. 1929) .................................  42

Grautreaux v. Chicago Housing Authority, 265 F.
Supp. 582 (N.D.I11., E.D. 1967) .............................  28

Green Street Association v. Daley, 373 F.2d 1 (7th
Cir. 1967) cert. den. 387 U.S. 932 (1967 )..........12,13n, 14,

15, 27, 28
Griffin v. Maryland, 378 U.S. 130 (1964) .................  19



11)

Hall v. Werthan Bag Corp., 251 F. Supp. 184 (M.D.
Tenn. 1966) ..................................................................  31, 32

Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966) . . 29,30
Hamer v. Ely (N.D.Miss., Greenville Div. No. GC6522,

Feb. 15, 1967) ............................................................. 29,30
Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 

909 (9th Cir. 1964) ................................................... 38

Harrison-Halsted Community Group, Inc. v. Hous­
ing and Home Finance Agency, 310 F.2d 99 (7 Cir.
1962) cert. den. 373 U.S. 914 (1963) ................. 13,13n, 22

Hobson v. Hansen, Congressional Record—House,
June 21, 1967, pp. H 7656, II 7690 . .........................  16,17

Johnson v. Redevelopment Agency of City of Oak­
land, Cal., 317 F.2d 872 (9 Cir. 1963) . . .  ................ 13,13n

Joint Anti-Fascist Refugee Committee v. McGrath,
341 U.S. 123 (1951) ................................................. .. 40

Jones v. Amerlagene, Inc., 31 F. Supp. 495 .............. 42

Kansas v. Colorado, 185 U.S. 125 (1901) ...................  43

Lemon v. Bossier Parish School Board, 240 F. Supp.
709 (W.D.La. 1965) re-hear. den. 240 F. Supp. 743, 
aff’d 370 F.2d 847 (5th Cir. 1967) cert, den. 388 U.S.
911 (1967) ...............    25,26,27,28

Louisiana ox rel, Gremillion v. NAACP, 366 U.S.
293 ................................................................................ 39

Lyon v. Atlantic Coast Line P. Co., 224 F. Supp. 1014 
. (W.D.S.C. 1964) ........................................................ 38

17

PAGE

Monroe v. Pape, 365 U.S. 167 (1961)

NAACP v. Alabama, 357 U.S. 449 . 
NAACP v. Button, 371 U.S. 415 . . . .

39
39



IV

Overfield v. Pennroad Corp., 42 F. Supp. 586 (E.D.Pa.
1941) Supp. Opin. 45 F. Supp. 1008 (1943), aff’d 
146 F.2d 889 (CCA 3rd Cir. 1944) .....................  43

Oyama v. California, 332 U.S. 631 (1958) .................  16

Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) ................ 34, 35
Process-Manz Press, Inc., In re, 236 F. Supp. 333 

(N.D.I11., E.D. 1964) ................................................. 17

Robbins, Inc. v. Charles Pfizer & Co., 235 F. Supp.
743 (E.D.Pa. 1964) .....................................   17

Shelley v. Kraemer, 334 U.S. 1 (1948) .....................  15
Sisco v. McNutt, 209 F.2d 550 (8th Cir. 1934) .......... 17
Smith v. Holiday Inns of America, Inc., 336 F.2d 630 

(6th Cir. 1964) ............................................................  17

Taft Hotel Corporation v. Housing and Home 
Finance, 262 F.2d 307 (2nd Cir. 1958) cert. den. 359 
U.S. 967 (1959) ..........................................................  24

Taylor v. Board of Education of City School District 
of City of New Rochelle, 191 F. Supp. 181 (S.D.
N.Y.) aff’d 294 F.2d 36 (2nd Cir. 1961) cert. den.
368 U.S. 490 (1961) ..................................................  16

U.S. v. Raines, 203 F.Supp. 147 (M.D.Ga. 1961) .. 42
United States v. State of Louisiana, 225 F. Supp. 353 

(E.D. La. 1963), aff’d 380 U.S. 145 (1965) .......... 16

Western Union Tel. Co. v. Western and Atlantic R.
Co., 91 U.S. 283 (1875) ..................... ................... ... 42

Wittkamper v. Harvey, 188 F. Supp. 715 (M.D.Gta.
I960) ............................................................................  32,33

PAGE

Yick Wo v. Hopkins, 118 U.S. 356 (1886) 16



Constitution of the United States:

Fourteenth Amendment....................... . 10,13,19, 20, 33
Fifth Amendment................................................ . 13

Civil Rights Act of 1964:

Section 601 .................................................... 14, 24, 25, 28

Federal Rules of Civil Procedure:
Rule 23 .............  3,7,29,36
Rule 2 3 (a ) ................................................................  33,36
Rule 23(b) ( 2 ) ....................................................9,33,44,45
Rule 2 3 (d ) ...........................   9,37

42 U.S.C. § 1450 ..............................................................  5
42 U.S.C. § 1451(c) ......................................................... 22
42 U.S.C. § 1455 ..............................................................  33
42 U.S.C. § 1455(c) ...............................................6, 8, 9, 21, 22
42 U.S.C. § 1456(c) (7) ................................................... 22
42 U.S.C. § 1460(c) (4) ....................... ........................... 22

42 U.S.C. § 2000(d) ......................................................9,14,17

V

Statutes Cited
PAGE



VI

3 Moore’s Federal Practice, 2d Ed. 1966 Cum. Supp.
236, 237, 239 ............................................................ 34,37,44

71 Yale Law Journal 599 (March 1962) ................. .. 40

73 Yale Law Journal 1080 (1964) ...............................  2n, 23

Anderson, Martin “ The Federal Bulldozer, A Criti­
cal Analysis of Urban Renewal 1949-1962“  MIT 
Press 1964 ..................................................................  In, 2n

Barron and Holtzoff, Federal Practice and Procedure 
(1966 Pocket Parts), Vol. 2, Sec. 562 at p. 67 . . . .  36

Center for Study of Democratic Institution, Center 
Diary: 18, p. 27 (May-June 1967) .........................  In

Eunice and George Grier “ Equality and Beyond:
_ Housing Segregation in the Great Society” , re­

printed in The Negro American, The Daidalus 
Library, pp. 525, 532 (Beacon Press 1966)............ 2n

HHFA, Relocation From Urban Renewal Project 
Areas Through December, 1961, p. 8 (1962 ).......... 2n

HUD: Urban Renewal Manual, 16-1, Ch. 1 .............  5

Other Authorities Cited
PAGE



Mttttefc (Emtrt nf Appeals
For the Second Circuit

No. 31761

----------------------------- o------------------------------

N orwalk  Core, et al.,
Plaintiff s-Appellants,

against

N orwalk  R edevelopment A gency, et al.,
Defendants-Appellees.

----------------------------- o------------------------------

PLAINTIFFS-APPELLANTS’ BRIEF

Introduction

This appeal brings before the Court an issue of great 
national concern: the rights of low-income Negro and Puerto 
Rican families to safe, sanitary and decent housing within 
their financial means when their present homes are demol­
ished by governmental urban renewal programs. Renewal 
programs in America’s urban centers present a picture of 
hundreds of thousands of homes being destroyed through 
massive governmental action without any accompanying 
construction of low-rent housing to accommodate the fam­
ilies who have been left homeless.* It is the Negro and

* By March 31, 1961 the urban renewal program had eliminated 
126,000 low-rent homes and replaced them with about 28,000 homes, 
most of them in a much higher rent bracket. Anderson, Martin, 
“ The Federal Bulldozer, A Critical Analysis of Urban Renewal, 
1949-1962” M IT Press 1964; p. 67. By 1967, as noted by Richard 
Cloward of the School of Social Work of Columbia University, 
urban renewal and highway construction had demolished 700,000 
low rental units while during the 15-year period involved urban 
renewal had built at the most 100,000 new units. Center for the 
Study of Democratic Institutions, Center Diary: 18, p. 27 (May- 
June 1967).



2

Puerto Rican families in the cities whose homes have been 
the special target of the bulldozer as it levels residential 
areas for commercial centers and parking lots.* There is 
no doubt that housing shortages, with ever increasing rents, 
doubling up and substandard conditions, flowing from pro­
grams conducted under the guise of improving the City, 
have been a major source of oppression and frustration 
leading to the urban upheavals which have characterized 
the last four summers in the United States.

The significance of the secular framework of the issues 
in this appeal has its counterpart in the legal questions 
directly presented herein. This appeal involves the right 
of low-income Negro and Puerto Rican families to claim 
the protection of the equal protection clause of the Four­
teenth Amendment when their homes are destroyed by 
governmental action, where the agencies involved know 
that the inevitable result of their actions is to subject these 
minority groups to discriminatory and excessive rents and

* Thus, by the end of 1961 of 86,000 displaced families for 
whom race was reported, 57,000 were non-white. H H FA, Reloca­
tion From Urban Renewal Project Areas Through December, 1961, 
p. 8 (1962). The Yale Law Journal has stated that “ The problem 
of relocating displacees is further complicated by the fact that a 
majority of them are non-white families.’ ’ (73 Yale Law Journal 
1080, 1082 (1964)). And Martin Anderson in his critical analysis 
of urban renewal found that between 60%  and 70%  of those people 
already forced out of their homes by the program were members 
of the non-white group. Anderson, Martin, “ The Federal Bulldozer, 
A  Critical Analysis of Urban Renewal, 1949-1962” at p. 213. It 
has also been noted that:

“ Most often, as might be expected, the occupants of the site 
before renewal have been low-income members of a racial minor­
ity. They have been displaced by housing which, for economic 
reasons alone, was available mainly to whites and to very few 
Negroes.”

Eunice and George Grier, “ Equality and Beyond: Housing- 
Segregation in the Great Society” as reprinted in The Negro 
American, The Daedalus Library, pp. 525, 532 (Beacon Press 
1966).



3

substandard housing conditions. This appeal also involves 
the right of tenants to complain in a federal court that 
they have not received the housing guaranteed to them 
under the very federal statute which authorizes the federal 
funding of the urban renewal program which has destroyed 
their existing housing. Thus, both Constitutional and 
statutory rights in regard to the critical question of housing 
in our cities is squarely raised in the instant appeal.

Statement

Proceedings:

This action was commenced as a class action in the U.S. 
District Court for the District of Connecticut by Complaint 
(18a, et seq.)* dated and filed June 15, 1967. Accompany­
ing that complaint, plaintiffs filed a Motion for Preliminary 
Injunction (37a). The case was assigned by Chief Judge 
Timbers to District Judge Zainpano for all purposes 
(R-36).

Motions to Dismiss were filed by all defendants-appel- 
lees on July 7 and 10, 1967 (R-110, et seq.) and hearing on 
said motions and on plaintiffs-appellants Motion for Pre­
liminary Injunction as well as upon the propriety of bring­
ing this action as a class action under Rule 23, FRCP was 
had on July 13, 1967. Thereafter Judge Zampano rendered 
a Memorandum of Decision dated July 27, 1967 (6a, et seq.) 
and Judgment was issued on July 28, 1967 (5a) dismissing 
the action.

Notice of Appeal to this Court was filed on August 25, 
1967 (R-133) and the Record on Appeal was filed and cause 
docketed here on October 3, 1967.

* Throughout this brief page numbers followed by “ a” refer to 
pages in the printed Appellants’ Appendix and page numbers pre­
ceded by “ R -’ ’ refer to pages in the Record on Appeal, where the 
referenced document has not been printed.



4

Parties:

The plaintiffs-appellants (sometimes referred to as 
“ plaintiffs”  hereinafter) are the Norwalk, Connecticut, 
Chapter of the Congress of Racial Equality, two voluntary, 
non-profit, unincorporated tenants associations and cer­
tain named individuals (19a-23a). The defendants-appel- 
lees (hereinafter sometimes referred to as “ defendants” ) 
are the City of Norwalk, Connecticut and named officials 
thereof (“ City”  hereinafter), the Norwalk Redevelopment 
Agency and named officials and members thereof (“ Agen­
cy ”  hereinafter), the Norwalk Housing Authority and 
named officers and members thereof (“ Authority”  herein­
after), Towne House Gardens, Inc., a corporation created 
to construct middle-income housing on 6 acres of cleared 
land in the Norwalk urban renewal area (“ Towne House”  
hereinafter), David Katz & Sons, Inc., the corporate spon­
sor of the Norwalk redevelopment project which also owns 
one-half of the stock of Towne House (“ Sponsor”  here­
inafter), Robert C. Weaver (“ Weaver”  hereinafter), 
Secretary of the U.S. Department of Housing and Urban 
Development (“ HUD”  hereinafter) and Charles J. Horan 
(“ Horan”  hereinafter), Assistant Regional Administra­
tor for Renewal Assistance of HUD for Region I which 
includes the City of Norwalk (18a-19a).

Claims for Relief:

Described below in summary form are the three claims 
which are set forth by detailed factual allegations in the 
complaint. These allegations, as well as the supporting 
affidavits on the motion for a preliminary injunction, were 
never controverted by defendants by any pleadings or affi­
davits prior to or at the time of their motions to dismiss.

First: In their complaint, plaintiffs asserted that de­
fendants Agency and City were engaged in an urban re­
development program pursuant to the terms of a Loan and 
Capital Grant Contract entered into between them and



5

HUD on June 24, 1963, under the provisions of 42 U.S.C. 
§ 1450, et seq., the Federal urban redevelopment statute 
(24a-25a). Without any survey as to families to be relo­
cated and available relocation housing, any relocation de­
partment or Community Renewal Program as required by 
HUD (see HUD: Urban Renewal Manual, 16-1, Ch. 1) the 
City and Agency proceeded with the urban renewal program 
(25a, 28a, 29a). Moreover, prior to and at the time of en­
tering into said contract (25a) and thereafter when the 
City and Agency commenced, and while they continued, to 
demolish the residential housing of low-income Negroes 
and Puerto Ricans, the City and Agency knew (27a, 28a) :

. . that the vacancy rate in low-cost public hous­
ing in the City of Norwalk was not adequate to 
meet the housing needs of low-income Negro and 
Puerto Rican families whose homes in the Project 
Area had been or would be demolished; that applica­
tions from Negro and Puerto Rican applicants for 
housing units in the low-rent projects in the City were 
so substantial that use of any vacancies in the exist­
ing low-rent projects for the low-income Negro and 
Puerto Rican families from the Project Area would 
only aggravate the deprivation of low-rent housing 
for Negro and Puerto Rican families in the City of 
Norwalk; that the discrimination in the open market 
was subjecting Negro and Puerto Rican families to 
rents more than double that being charged to white 
families; that Negro and Puerto Rican families were 
being forced to live in private housing in over­
crowded and substandard conditions; that Negro 
and Puerto Rican families were so completely 
being deprived of opportunity to be sheltered in 
safe and decent housing within their financial 
means that many were being forced to leave the 
City of Norwalk entirely and that said excessive 
rentals, overcrowding, substandard conditions and 
removal from the City were hardships and depriva­
tions of low-income Negro and Puerto Rican 
families which were not and would not be ex­
perienced to any substantially equal degree by white 
families in the City of Norwalk.”

And furthermore, defendants (31a):
. . have pursued a course of conduct to force the 

said Negro and Puerto Rican families out of the on­



6

site housing structures by rendering such housing 
unsafe, unsanitary and indecent, by charging rents 
beyond the financial means of the families and in­
dividuals, by forcing excessive moving of families 
and individuals from one on-site location to another, 
by reducing the number of available on-site houses, 
by threatening evictions, and by carrying on heavy 
construction activities around the said on-site 
houses.”

Second: For their second claim, plaintiffs realleged all 
of those facts above described and alleged further (33a) 
that these acts were done:

. . with the intent and purpose to deprive low- 
income Negro and Puerto Rican families of the equal 
protection of the laws and of substantially the same 
conditions of shelter and rentals therefor as are en­
joyed by the white citizens of the City and of the 
same rights to purchase, lease and hold property as 
enjoyed by white citizens [and] . . . with the intent 
and purpose of forcing out of the City of Norwalk 
low-income Negro and Puerto Rican families.”

Third: Plaintiffs realleged all of the facts described
in “ First”  above and further asserted that by failure of 
defendants to provide (33a):

. . in the Project Area, or in other areas not 
generally less desirable, decent, safe and sanitary 
dwellings at rents within the financial means of the 
families and individuals displaced from the Project 
Area . . . equal in number to the number of and 
available to such displaced families and individuals 
and reasonably accessible to their places of employ­
ment ’ ’

they violated the terms of both the statute, 42 U.S.C. 
1455(c), and the Loan and Capital Grant Contract with 
HUD.



7

Injury:

By the acts of defendants described above plaintiffs and 
others similarly situated and those whom the plaintiff-or­
ganizations represent were denied the equal protection of 
the laws in that, being low-income Negroes and Puerto 
Ricans, they were subjected to hardships and deprivations 
which were not experienced to any substantially equal de­
gree by white persons in the City of Norwalk, all in 
violation of the Constitution and laws of the United States.

In addition, the acts of defendants, based upon their 
knowledge of the housing situation in Norwalk, deprived 
plaintiffs and others similarly situated of the same rights 
enjoyed by white citizens of the City of Norwalk to pur­
chase, lease and hold property guaranteed to them by 
the laws of the United States.

Relief Sought:

Plaintiffs sought injunctive relief preventing defendants 
City and Agency from disposing of six acres of cleared 
land within the project area to a private developer for 
the construction of moderate income housing and from de­
molishing residential structures within the projected area 
until the inhabitants thereof are properly relocated; com­
pelling defendants to properly relocate persons still in the 
project area into suitable relocation housing; rescinding any 
previous transfers of said parcel from the City and Agency 
to the Sponsor or to Towne House.

Plaintiffs further sought an order compelling defendants 
“ to proceed with all deliberate speed . . .  to propose a 
plan for the construction and erection . . .  of low-rental 
housing units”  and to have such program administered 
under the jurisdiction and control of the court (36a).

In addition preliminary injunctive relief was sought 
to prevent the City and Agency from disposing of the 
cleared 6 acre parcel and from further demolishing resi­
dential structures in the project area (34a, 35a).



Errors assigned:

The court below committed error:
1. in dismissing the within action;

2. in failing to grant plaintiffs’ motion for preliminary 
injunction;

3. in failing to find that the within action was main­
tainable as a class action under Rule 23, F.R.C.P.

Questions Presented

The following questions of law involved in the decision 
below are presented for determination upon this appeal:

1. Where official conduct under an urban renewal pro­
gram involves the demolition of residential housing of low- 
income Negro and Puerto Rican families, without provision 
for the construction of new low-rent housing, and the gov­
ernment officials know that such conduct will inevitably 
result in denying low-income Negro and Puerto Rican fam­
ilies in the City of Norwalk of equal housing opportunities 
by subjecting them to discriminatory rents and substandard 
and overcrowded conditions, do these families have stand­
ing to complain of a deprivation of equal protection of 
the laws regardless of whether tenants are ordinarily 
denied standing to challenge planning of an urban renewal 
project?

2. Do tenants have standing to complain that they have 
not been relocated into safe, sanitary and decent housing 
at rentals within their financial means as required in an 
urban renewal program by 42 U.S.C. 1455(c) under the 
decision of this Court in Gart v. Cole, 263 F. 2d 244 (2d 
Cir. 1959), cert. den. 359 U.S. 978 (1959)?

3. Do tenants have standing to complain that they have 
not been relocated into safe, sanitary and decent housing 
at rentals within their financial means as required in a



9

federally supported urban renewal program by 42 U.S.C. 
1455 (c) under Section 601 of the Civil Rights Act of 1964 
(42 U.S.C. (2000 d) ?

4. Does the complaint herein allege a proper class 
action under the revised Rule 23 of the Federal Rules 
of Civil Procedure!

5. Even if the action was not properly maintainable 
as a class action, did the Court below err in dismissing the 
entire action rather than ordering the complaint to be 
amended so as to eliminate the class allegations as pro­
vided by Rule 23(d), F.R.C.P.?

6. Is the Court restricted to the particular injunctive 
relief requested in the complaint in considering the suit in 
general and the specific provisions of Rule 23(b)(2), or 
should the Court’s determination be based upon the ap­
propriateness of any injunctive relief under the allegations 
of the complaint?

I

The Court below erred in failing to find jurisdiction 
over the constitutional and statutory claims.

While the Court below proceeded first with an analysis 
of whether a proper class action was involved and then 
followed with a finding that there was no jurisdiction over 
the Constitutional and Statutory claims, we first discuss 
the latter finding which more directly involves the nature of 
the claims set forth in the complaint.

1. Erroneous Statements in the Opinion Below

At the outset, it should be noted that certain assump­
tions were made by the Court below which are nowhere sup­
ported by anything in the record and are, further, directly 
contrary to facts brought to the attention of the Court.



1 0

In his memorandum below, Judge Zampano noted that 
(14a):

“ Members of the public, whether living inside or 
outside a project area, ordinarily have no standing 
to challenge planning of an urban renewal project, 
see Harrison-Halsted Community Group, Inc. v. 
Housing and Home Finance Agency, 310 F,2d 99 (7 
Cir. 1962), cert, denied 373 U.S. 914 (1963), nor, by 
alleging civil rights violations, do they gain stand­
ing they would otherwise not have, see Green Street 
Association v. Daley, 373 F.2d 1 (7 Cir. 1967) [cert, 
den. 387 U.S. 932 (i967)]. See also, Johnson v. Re­
development Agency of City of Oakland, Cal., 317 
F. 2d 872 (9 Cir. 1963). If residents of a project area 
cannot challenge a project while it is in the planning 
stages and before construction has begun, certainly 
they can have no standing to assert the same kind of 
challenge at a time when planning has been imple­
mented, most of the land has been purchased and 
conveyed to developers, and construction of new 
buildings has been almost completed.”

First, assuming arguendo that no one has standing to 
challenge an urban renewal program in the planning stages,* 
it does not logically follow that once the “ planning has 
been implemented”  there is therefore no standing to attack 
it. Indeed, it normally will be only when the implementa­
tion has commenced that state action in implementing the 
plan will result in the deprivation of 14th Amendment rights. 
It may be that on the facts herein no claim could have been 
predicated upon the urban renewal plan as it existed prior 
to implementation, but plaintiffs have asserted that in the 
execution and implementation of the plan rights of plaintiffs

* The Court’s generalized statement that “ ordinarily” there is 
no standing is obviously too sweeping. If a plan for an urban 
renewal project called for the construction of a middle-income hous­
ing development to which Negro and Puerto Rican families were 
to be barred it could hardly be contended that such families in the 
project area whose homes would be destroyed by the plan would 
have no standing to challenge it.



11

and others, under the Constitution and laws of the United 
States, have been abridged.

Second, Judge Zampano has made findings of fact which 
not only do not find support in the record, but which appel­
lants emphatically deny. As noted above, Judge Zampano 
suggests that in the urban renewal project here in question 
the “ planning has been implemented, most of the land has 
been purchased and conveyed to developers, and construc­
tion of new buildings has been almost completed.”  The 
fact is that at the time of commencement of this suit only 
the planned commercial structures were completed, the six 
acre parcel here drawn in question was no more than cleared, 
no structures had been built upon this parcel and the pur­
chase and conveyance of the parcel to Towne House had 
not been completed.

Furthermore, Judge Zampano indicated that (9 a ):
“ The plaintiffs concede the basic urban renewal 

plans, from inception, contemplated the erection of 
moderate-income housing on the six acres of land in 
question, that commercial and office space was con­
structed and leases were entered into in reliance upon 
these rental units being built, . . . ”

This statement finds absolutely no support in the record 
and is, indeed, directly contrary to facts brought to the 
attention of the Court below by plaintiffs’ counsel. At a 
conference of all counsel of record in Judge Zampano’s 
chambers, where counsel for the Sponsor first suggested 
that the urban renewal plan from inception contemplated 
moderate-income housing in the project area and that com­
mercial and office space was constructed and leased in re­
liance upon such housing, plaintiffs’ counsel produced a 
copy of a letter from the Sponsor to the Agency in which 
the former not only specifically disclaimed any desire or 
willingness to construct moderate-income housing in the 
project area but also stated it would prefer to withdraw 
as sponsor if such construction was planned.



12

In light of the utter absence of any support in the record 
and the specific information to the contrary presented in 
Chambers the Court below erred in assuming that (1) 
from inception it was contemplated the six acres would be 
used for moderate-income housing, (2) commercial and office 
space was constructed and leases entered into in reliance 
upon such housing and (3) plaintiffs conceded either mat­
ter. The impact of these erroneous assumptions on the 
Court’s analysis of the plaintiffs’ claims was, we submit, 
significant if not devastating.

Furthermore, Judge Zampano in citing Green Street 
Association v. Daley, 373 F.2d 1 (7th Cir. 1967), cert. den. 
387 U.S. 932 (1967) indicates that that case “ holds that 
the civil rights statutes do not provide a remedy for plain­
tiffs relocated pursuant to an urban renewal plan’ ’ (16a). 
In a footnote Judge Zampano further notes that “ allega­
tions of the Green Street case were far more serious”  than 
herein because there it was asserted that:

“ The redevelopment project was a sham, intended 
solely to drive Negroes from a section of Chicago. 
Here, defendants are charged merely with making 
an error in planning for relocation of a displaced 
residents of the project area.”

Manifestly this is an erroneous analysis of plaintiffs’ 
complaint. In the first count plaintiffs have alleged that 
defendants executed the urban renewal plan with full 
knowledge that the inevitable result would be to deprive 
planitiffs and others of equal protection; this was no “ error 
in planning.”  In the second count plaintiffs have specifi­
cally alleged that the program was carried out “ with the 
intent and purpose of forcing”  not only out of a section 
of Norwalk, but “ out of the City of Norwalk”  altogether 
“ low-income Negro and Puerto Rican families”  (33a). 
Therefore, this portion of Judge Zampano’s opinion, which 
is the sole portion that goes directly to the heart of the 
issues raised herein, speaks not at all with reference to the



13

second cause of action and misconstrues as “ merely . . . 
an error in planning for relocation’ ’ the specific and de­
tailed factual allegations of the first cause showing the 
continual and expressed knowledge of the defendants of 
the inevitable discriminatory results of their actions.

2. The Constitutional Claim.

The Court below relies upon three cases* for its con­
clusion that allegations of Constitutional deprivation 
(“ civil rights violations” ) do not give plaintiffs standing 
that they would not otherwise have (14a).

In both Harrison-Halsted and Johnson the Appellate 
Courts never considered the question of standing under a 
Constitutional claim. Thus, in Harrison-Halsted plaintiffs 
therein argued that the complaint showed defendants had 
violated a series of provisions of the federal Housing Act 
and the regulations and directives of the Housing and 
Home Finance Agency. The Court held that the statute 
and regulations did not confer legal rights upon the plain­
tiffs therein, separate from their position as members of 
the general public. While the Court noted that there was 
an allegation in the complaint that the proposed University 
site plan would result in a loss in minority group housing 
not being replaced elsewhere in the community, at no place 
in the Court’s decision is there any indication that a claim 
of equal protection had been raised or considered.

Similarly, in Johnson, while the complaint contained an 
allegation regarding violation of the Fifth and Fourteenth 
Amendments, plaintiffs therein contended that they de­
rived their rights from Section 1455 (c) of the Housing 
Act of 1949 (at 874 of 317 F.2d) and the claim of equal pro­
tection was neither raised nor considered on appeal.

* Harrison-Halsted Community Group, Inc. v. Housing and 
Home Finance Agency, supra; Green Street Association v. Daley, 
supra; Johnson v. Redevelopment Agency of City of Oakland, Cal., 
supra.



14

The Seventh Circuit opinion in Green Street, supra, 
does consider claims of equal protection and civil rights but 
under circumstances which are inapposite herein and with 
an analysis which is wholly inadequate to the issues. Thus, 
the Court in Green Street found that plaintiffs therein were 
seeking “ judicial review of a program of urban renewal 
prior to the exercise of the power of eminent domain.”  (At 
p. 6 of 373 F.2d.) In contrast herein, the relief sought con­
cerns the sale of land by the City to a private developer 
after eminent domain has been exercised and in reference 
to a parcel which was not designated for moderate income 
housing at the planning stages of the renewal program. 
The unique questions of public purpose which govern the 
anticipated exercise of the power of eminent domain and 
which concerned the Court in Green Street are not con­
trolling herein where not the eminent domain power but 
the Constitutional and statutory responsibility of defend­
ants as it affects the transfer of realty owned by the City 
is at issue.

The Seventh Circuit dismissed the Green Street plain­
tiffs’ attack on the relocation provisions of the urban re­
newal plan on the grounds that (1) they have no standing 
to litigate violations of the Housing Act of 1949, (2) Sec­
tion 601 of the Civil Rights Act of 1964 (42 U.S.C. 2000d) 
does not authorize suits against federal officers and (3) 
relocation into segregated areas is due to the segregated 
residential pattern of Chicago and not compelled by ma­
chinery established by the Plan. In response to these 
grounds plaintiffs herein contend that (1) in light of the 
decisions of this Court plaintiffs have standing under the 
Housing Act (see pp. 21-24, infra), (2) the more persuasive 
authority recognizes Section 601 as authorizing suits such 
as the instant case (see pp. 24-28, infra), (3) There is a Con­
stitutional obligation in regard to relocation where the gov­
ernmental authorities know that the inevitable result of 
the demolition of the residential housing in the project 
area along with the failure to provide for the creation of



low cost housing units will be and has been the denial of 
equal protection of the laws to low income Negro and 
Puerto Rican families who have been thereby compelled to 
relocate into discriminatory, high rental, substandard and 
overcrowded housing.

Moreover, even if the Green Street decision may be 
viewed as relevant herein, plaintiffs respectfully submit 
that this Court should not follow that decision. On the 
contrary, the authoritative decisions concerning equal pro­
tection of the laws support on several theories plaintiffs’ 
first and second claims for relief based upon the Four­
teenth Amendment.

1. Housing is “ a necessary of life,”  Block v. Hirsh, 
256 U.S. 135, 156 (1921), and is encompassed within those 
basic matters to which all persons are entitled to the equal 
protection of the laws. Cf. Shelley v. Kraemer, 334 U.S. 1 
(1948).

Regardless of whether the claimed denial has resulted 
from the actions of one or more governmental agencies 
and regardless of the guise under which the governmental 
action has proceeded, the equal protection clause applies. 
As stated by the Supreme Court in Cooper v. Aaron, 358 
U.S. 1, 17 (1958):

“ Thus the prohibitions of the Fourteenth Amend­
ment extend to all action of the State denying equal 
protection of the laws; whatever the agency of the 
State taking the action, see Virginia v. Rives, 100 
U.S. 313, 25 L.ed 667; Pennsylvania v. Board of 
Directors of City Trusts of Phila., 353 U.S. 230, 
1 L.ed 2d 792, 77 S.Ct. 806; Shelley v. Kraemer, 
334 U.S. 1, 92 L.ed 1161, 68 S. Ct. 836, 3 A.L.R.2d 
441, or whatever the guise in which it is taken, see 
Derrington v. Plummer (C.A. 5 Tex.) 240 F.2d 922; 
Department of Conservation & Development v. Tate 
(C.A. 4, Va.) 231 F2d 615.”

Nor does the application of the equal protection clause 
require state action which on its face or explicitly involves

15



16

a discriminatory racial classification. Oyama v. Califor­
nia, 332 U.S. 631 (1948); Yick Wo v. Hopkins, 118 U.S. 
356, 373-374 (1886); United, States v. State of Louisiana, 
225 F.Supp. 353, 362-363 (E.D.La., 1963), aff’d 380 U.S. 145 
(1965).

When a course of state action (herein the destruction 
of the housing in the project area without the creation 
of new low-cost housing units) has resulted in denying 
low-income Negro and Puerto Rican families of equal hous­
ing opportunities and it was known by the governmental 
officials that this would be the inevitable result of the 
state action, there is a violation of the equal protection 
clause of the Fourteenth Amendment. The scope of the 
Amendment as stated in cases such as Cooper v. Aaron, 
supra, and its application in such cases as the New Ro­
chelle case, Taylor v. Board of Education of City School 
District of City of New Rochelle, 191 F. Supp. 181 (S.D. 
N.Y. 1961), aff’d 294 F.2d 36 (2nd Cir. 1961), cert. den. 
368 U.S. 940 (1961), show that the present-day meaning 
of the equal protection clause protects against state ac­
tions which knowingly and inevitably result in a denial 
of equal opportunities or rights, as well as state actions 
which purposefully deny such equality.

The most recent enunciation of the present day scope 
of the equal protection clause is found in the opinion of 
Circuit Judge Skelley Wright in Hobson v. Hansen, Con­
gressional Record—House, June 21, 1967, pp. H7656, 
H7690:

“ Orthodox equal protection doctrine can be encap­
sulated in a single rule: government action which 
without justification imposes unequal burdens or 
awards unequal benefits is unconstitutional. The 
complaint that analytically no violation of equal 
protection vests unless the inequalities stem from 
a deliberately discriminatory plan is simply false. 
Whatever the law was once, it is a testament to 
our maturing concept of equality that, with the help 
of Supreme Court decisions in the last decade, we



17

now firmly recognize that the arbitrary quality of 
thoughtlessness can be as disastrous and unfair to 
private rights and the public interest as the per­
versity of a willful scheme.”

In a footnote to the Court’s statement Judge Wright 
cites Baker v. Carr, 369 U.S. 186, 226 (1962), and declares 
‘ ‘ discrimination-in-fact is bad when it ‘ reflects no policy, 
but simply arbitrary and capricious action.’ (Justice 
Brennan’s emphasis.) ’ ’

2. Further, as a matter of law, both under the Civil 
Rights statutes and the general common law, the defend­
ants herein must be deemed to have known and intended 
the natural consequences of their acts. Monroe v. Pape, 
365 U.S. 167 (1961); Sisco v. McNutt, 209 F.2d 550, 552 
(8th Cir. 1934) ; Robbins, Inc. v. Charles Pfizer d  Co., 235 
F. Supp. 743, 749 (E.D.Pa. 1964) ; In re Process-Mam  
Press, Inc., 236 F. Supp, 333, 347 (N.JD.Ill. E.D. 1964).

3. The state action herein has become so implicated 
with the discriminatory rental market in the City of Nor­
walk, by reason of the destruction of the residential hous­
ing in the project area requiring families therein to move 
into the discriminatory rental market, that the purposeful 
“ private”  discrimination must be deemed state action for 
purposes of the equal protection clause. Burton v. Wil­
mington Parking Authority, 363 U.S. 715 (1961); Smith 
v. Holiday Inns of America, Inc., 336 F.2d 630 (6th Cir. 
1964). The implication of state action in the purposeful 
discrimination of the private rental market and the viola­
tion of the equal protection clause is just as much involved 
herein where Negro and Puerto Rican families have been 
forced into the discriminatory market by the State’s affirm­
ative acts in destroying the houses in the project area as 
was involved in the Holiday Inns case where the private 
motel which refused to accept Negroes was built in the 
project area on land purchased from the city housing au­
thority.



18

In Ethridge v. Rhodes (65 LRRM 2331, D.C. S.D. Ohio 
E.D., 1967) the defendants, state officials, were enjoined 
from entering into contracts for the construction of state 
educational buildings with construction firms who were 
dealing with unions which discriminated against Negroes. 
The Court noted that these state officials were aware that 
the unions did not refer Negroes for employment on con­
struction of other buildings erected on the campus site, 
that the unions did not have any Negro members, and 
that the union officers were consistently unavailable to 
Negroes who sought membership. The Court found that 
this evidence established defendants’ knowledge of a pat­
tern of discrimination against Negroes. The Court pro­
ceeded to find that the state became so implicated in this 
private pattern of discrimination by entering into agree­
ments with building contractors dealing with these unions 
that the actions of the private individuals in discriminating 
against Negroes became ‘ ‘ state action. ’ ’ The Court stated:

■ • when a state has become a joint participant 
in a pattern of racially discriminatory conduct by 
placing itself in a position of interdependence with 
private individuals acting in such a manner—that is, 
the proposed contractors acting under contract with 
unions that bar Negroes—this constitutes a type of 
‘ state action’ proscribed by the Fourteenth Amend­
ment. Burton v. Wilmington Parking Authority, 
supra. Thus, as in the instant suit, where a state, 
through its elected and appointed officials, under­
takes to perform essential governmental functions-— 
herein, the construction of facilities for public edu­
cation—with the aid of private persons, it cannot 
avoid the responsibilities imposed on it by the 
Fourteenth Amendment by merely ignoring or failing 
to perform them. Ibid.”

Similarly, in the instant case the complaint alleges 
full knowledge by defendants of a pattern of housing dis­
crimination against low-income Negroes and Puerto Ricans 
in the City of Norwalk and that the state has, in fact, be­



19

come a joint participant in this pattern of discriminatory 
conduct by demolishing the residential housing without 
building new low-cost housing, thereby forcing the Negro 
and Puerto Rican families into the discriminatory market 
and permitting the discriminatory market to perform the 
defendants’ essential function of providing safe, sanitary 
and decent housing to the displaced families.

4. It may also be said that the state action involved 
in the demolition of the residential housing under the cir­
cumstances herein imposed upon the Negro and Puerto 
Rican families the necessity of being subject to the pur­
poseful discrimination of the private market. This state 
action is, in principle, governed by the rule that

“ . . . to the extent that the state undertakes an obliga­
tion to enforce a private policy of racial segregation, 
the State is charged with racial discrimination and 
violates the Fourteenth Amendment.”

Griffin v. Maryland, 378 U.S. 130, 136 (1964).

Plaintiffs do not contend in the first and second claim 
that they were entitled to equal protection because of obli­
gations under the Loan and Capital Grant Contract. 
Rather, they contend that they are entitled to equal pro­
tection of the laws because of the mandate of the Four­
teenth Amendment and the provisions of the federal Civil 
Rights Acts and that such protection applies to the activi­
ties of the defendants herein because such activities, in­
cluding the demolition of housing, the failure to provide 
for the construction of any low-cost housing, the use of 
federal financial assistance, etc., constitute “ state action”  
within the purview of the United States Constitution. The 
contract is only relevant as an element of the state action 
which results in the application of the Fourteenth Amend­
ment and the Federal Civil Rights Acts which are the 
sources of the rights claimed by plaintiffs in the first and 
second causes of action.



20

In Burton v. Wilmington Parking Authority, supra, 
there was a lease between the state agency (Authority) and 
a private entity (Eagle). The plaintiff there did not con­
tend, nor did the Court find, that, plaintiff must have some, 
rights under the contract or some standing as a beneficiary 
thereof in order to make a claim of denial of equal protec­
tion. To the contrary, regardless of what the lease or con­
tract said as to equal protection, plaintiff had a right to 
such protection wherever ‘ ‘ state action ’ ’ is implicated.

“ As the Chancellor pointed out, in its lease with 
Eagle the Authority could have affirmatively re­
quired Eagle to discharge the responsibilities under 
the Fourteenth Amendment imposed upon the pri­
vate enterprise as a consequence of state participa­
tion. But no State may effectively abdicate its re­
sponsibilities by either ignoring them or by merely 
failing to discharge them whatever the motive may 
be. It is of no consolation to an individual denied 
the equal protection of the laws that it was done in 
good faith.”  (At 725 of 365 U.S.)

Moreover, defendants Sponsor and Towne House come 
within the rule that private parties who assist in the carry­
ing out of unlawful state action are subject to the Four­
teenth Amendment and the Civil Rights statutes. As 
stated in Baldwin v. Morgan, 251 F.2d 780, 788 (5th Cir. 
1958):

“ State action is indeed required under the Four­
teenth Amendment and 42 U.S.C.A. § 1983. But 
those who directly assist the admitted state agency 
in carrying out the unlawful action become a part 
of it and subject to the sanction of Section 1983. 
The Third Circuit in two cases [Valle v. Stengel, 
3 Cir., 176 F.2d 697, 702; Picking v. Pennsylvania 
R. Co., 3 Cir., 151 F.2d 240, 249] has held a private 
non-state party subject both to Civil Rights juris­
diction, 28 U.S.C.A. § 1343(3), as well as liability 
under 42 U.S.C.A. § 1983. Jurisdiction for such 
joint action was recognized by the 8th Circuit, Wat-



21

kins v. Oaklawn Jockey Club, 183 F.2d 440, which 
affirmed a denial of recovery on the merits after 
trial on the ground that the action of the alleged 
state officers was, as Screws puts it: * * In the
ambit of their personal pursuits * * V  And the 
Fourth Circuit, Flemming v. South Carolina Elec. & 
Gas Co., 224 F.2d 752, 753, considers that a private 
person may subject his employer to civil rights lia­
bility.”

In the case at bar, the “ state action”  concerns the mas­
sive demolition of residential housing in the project area 
with the failure to build new low-cost housing. By defend­
ants Sponsor and Towne House’s proposed construction of 
moderate income housing on the six acre parcel, the only 
land owned by the City which is sufficient, suitable and avail­
able for the construction of low-cost housing (29a), these 
private defendants are thereby assisting in the state action 
which has denied equal protection of the laws to low-income 
Negro and Puerto Rican families.

3. The Statutory Claim.

The statutory claim is based on Title 42 U.S.C. 1455(c) 
which provides in pertinent part:

“ Contracts for loans or capital grants shall be 
made only with a duly authorized local public agency 
and shall require that—

* # #
“ . . . there are or are being provided, in the urban 
renewal area or in other areas not generally less 
desirable in regard to public utilities and public and 
commercial facilities and at rents or prices within 
the financial means of the individuals and families 
displaced from the urban renewal area, decent, safe, 
and sanitary dwellings equal in number to the num­
ber of and available to such displaced individuals 
and families and reasonably accessible to their places 
of employment.”

Plaintiffs contended in the Court below that the rule 
of no standing enunciated in the Seventh Circuit in Ear-



2 2

rison-Halsted and Green Street does not apply in this Cir­
cuit because of the decision of this Court in Gart v. Cole, 
263 F.2d 244, 251 (2d Cir. 1959), cert. den. 359 U.S. 978 
(1959). The Court below disagreed, finding that Gart 
recognized standing only to persons “ suffering specific in­
juries incidental to the implementation of a renewal proj­
ect . . (17a).

However, an analysis of the decision in Gart discloses 
that the standing there recognized by this Court applies 
to the statutory claim herein. In Gart this Court held 
that tenants (1) do not have standing under 42 U.S.C. 
1456(c)(7) and 1460(c)(4) to assert that the City’s spon­
sorship agreements violated the Housing A ct’s alleged re­
quirement of open bidding, (2) do have standing under 42 
U.S.C. 1451(c) to challenge the Administrator’s refusal 
to grant them an oral hearing on the feasibility of the 
City’s relocation plan, (3) do have standing under 42 
U.S.C. 1451(c) to assert that the Administrator delegated 
his duty to review feasibility of the relocation plan. The 
distinction drawn by this Court in Gart was between a 
section of the statute “ designed to protect not the in­
terests of landowners or tenants in a redevelopment area, 
but those of the public at large”  and a section “ in pro­
tection of the interests of displaced residents”  at (250, 251 
of 263 F.2d).

Plaintiffs submit that if, as found in Gart, tenants 
do have standing to raise the question of an oral hearing 
on a relocation plan and to challenge any delegation by 
the Administrator of his duty to review feasibility of that 
plan then, a fortiori, tenants have standing to assert their 
right to relocation into decent, safe, and sanitary dwell­
ings within their financial means under 42 U.S.C. 1455(c) 
which is certainly as much for the “ protection of the in­
terests of displaced residents.”

The Court below apparently viewed Gart as distinguish­
ing between “ specific injuries”  and “ drastic judicial in­



23

tervention”  (see 17a). Gart itself does not indicate any 
such distinction. Not the relief sought but the interests 
to be protected by the statutory sections is the touchstone 
of Gart’s analysis of standing. In this light the interest of 
displaced tenants to full statutory protection in relocation 
is equally present in Gart v. Cole and in the present case.

This conclusion finds direct and complete support in 
73 Yale Law Journal 1080, 1084-1086 (1964), wherein it is 
stated:

“ Were relocation in standard housing not re­
quired, renewal might inflict substantial harm, eco­
nomic and emotional, in displacees. While, by its 
terms, section 105(c) [42 U.S.C. 1455(c)] only con­
trols the provisions of the federal aid contract, the 
point of such control is to insure the proper treat­
ment of site families. The statute thus appears to 
recognize the interests of, and to offer some pro­
tection to, these people. When a party seeks judi­
cial relief from an injury inflicted by administrative 
action upon an interest recognized by statute, stand­
ing and_ review traditionally obtain; indeed, it has 
been said that the cases establish a presumption 
of a right to judicial review in persons whose in­
terests are ‘ acutely and immediately affected’ by 
an administrative action. The Second Circuit has 
followed this doctrine in Gart v. Cole, where the 
court granted site families standing to contest the 
procedures adopted by the Administrator to en­
force the relocation requirement. A decision grant­
ing standing would conform not only to precedent 
but also to the counsel of the Administrative Pro­
cedure Act; section 10 of the APA, which appar­
ently codifies the presumption in favor of judicial 
review, provides for judicial intervention at the in­
stance of ‘ any person adversely affected or aggrieved 
. . . within the meaning of any relevant statute.’ 
Given the apparent purpose of section 105(c), re­
newal displacees seem well within this definition. 
Moreover, a denial of standing to site families 
silences the principal voice which might serve to 
check improper administration of section 105(c).



24

Finally, an absolute refusal by the court to intervene 
in the administration of section 105(c) at the in­
stance of site families seems an abdication of the 
court’s traditional institutional responsibility to in­
sure that administrative action is confined to the 
bounds of agency discretion and authority.”

The Court below further cited this Court’s decision in 
Taft Hotel Corporation v. Housing and Home Finance, 262 
F.2d 307 (2nd Cir. 1958), cert. den. 359 U.S. 967 (1959), 
in support of its finding of no standing. However, the de­
cision in that case was not based upon no standing to 
enforce statutory rights, but rather expressly upon the well 
recognized maxim that “ Economic loss stemming from law­
ful competition, even though made possible by federal aid, 
is damnum absque injuria”  (at p. 308 of 262 F.2d).

4. Plaintiffs’ standing under Title VI (Section
601) of the Civil Rights Act of 1964.

Section 601 in Title VI of the Civil Rights Act of 1964 
(42 IT.S.C. 2000d) provides that:

“ No person in the United States shall, on the 
ground of race, color, or national original, be ex­
cluded from participation in, be denied the benefits of, 
or be subjected to discrimination under any program 
or activity receiving Federal financial assistance.”  
(Emphasis added)

Plaintiffs asserted below that in the carrying out of the 
federally assisted urban renewal program, which involved 
the demolition of the homes of low-income Negro and 
Puerto Rican families and the failure to construct new 
low-rent housing plaintiffs and others similarly situated 
were subjected to discrimination in the housing conditions 
which were thereby forced upon them.

Plaintiffs further asserted below in their briefs and oral 
argument standing under § 601, but no discussion of that 
section or this claim was indulged by the Court below. The



25

leading ease under § 601 is Lemon v. Bossier Parish School 
Board, 240 F. Supp. 709 (W.D. La., 1965), re-hear. den. 
240 F. Supp. 743, aff’d 370 F. 2d 847 (5th Cir., 1967), cert, 
den. 388 U.S. 911 (1967). This was a class action brought 
by Negro residents of a U.S. Air Force Base within Bossier 
Parish to desegregate schools in the parish which had been 
constructed with Federal financial assistance. In clear and 
unequivocal language, the 'District Court noted (at 714, 
715):

“ By Section 601 . . . 0 ongress expressly pro­
hibited racial discrimination in any program re­
ceiving federal financial assistance, thus negating its 
original intention to provide funds without disturb­
ing racial classifications. When defendants received 
and accepted federal funds for maintenance and 
operation of their schools under 20 U.S.C.A. §§ 236- 
244 after passage of the Civil Rights Act of 1964, 
they became bound by Section 601 and now are obli­
gated to provide the education for which the pay­
ments were received, without racial discrimination. 
Plaintiffs, as pupils attending schools operated and 
maintained by these funds, are recipients of the 
rights conferred by Section 601, and as such are en­
titled to bring this suit. Section 601 gives plaintiffs 
standing to maintain this action as representatives 
of the class comprised of all children attending 
schools maintained and operated with federal finan­
cial assistance.

“ Consequently, plaintiffs are entitled to bring 
this class action either under Section 601 of the Civil 
Rights Act of 1964 or under the contractual assur­
ances by which defendants are estopped to deny 
them the same rights to attend desegregated schools 
as are possessed by children of Negro residents of 
Bossier Parish.”

Not only is the language of the Court clear, it was also 
the touchstone upon which that suit turned. Moreover, the 
Court of Appeals for the Fifth Circuit adopted the opinion 
below “ as part of the opinion of this Court”  (at 850 of 
370 F.2d) and set forth lengthy quotations therefrom. The 
Court added:



26

“ For good measure, we add a few observations 
to the district court’s opinion.

# # #

“ C. Finally, section 601 of the Civil Rights Act 
of 1964 provides:

“  ‘ No person in the United States shall, on the 
grounds of race, color, or national origin, be ex­
cluded from participation in, be denied the benefits 
of, or be subjected to discrimination under any 
program or activity receiving Federal financial as­
sistance. 42 U.S. C. § 2000d. ’
‘ ‘ The defendants argue that this section is a mere 

statement of policy, and that section 602’s adminis­
trative remedies are the only means by which it may 
be enforced. Section 601 states a reasonable condi­
tion that the United States may attach to any grant 
of financial assistance and may enforce by refusal 
or withdrawal of federal assistance. But it also 
states the law as laid down in hundreds of decisions, 
independent of the statute. In this sense, the sec­
tion is a prohibition, not an admonition. In the ab­
sence of a procedure through which the individual 
protected by section 601’s prohibition may assert 
their rights under it, violations of the law are cog­
nizable by the courts. See Texas & Pacific Ry. v. 
Rigsby, 1916, 241 U.S. 33, 36 S. Ct. 482, 60 L. Ed. 
874, Steele v. Louisville & N. R.R. 1944, 323 U.S. 
192, 65 S. Ct. 226, 89 L. Ed. 173. The Bossier Parish 
School Board accepted federal financial assistance 
in November 1964, and thereby brought its school 
system within the class of programs subject to the 
section 601 prohibition against discrimination. The 
Negro school children, as beneficiaries of the Act, 
have standing to assert their section 601 rights. ’ ’

(At 851, 852 of 370 F.2d)

To the same extent as in Lemon, plaintiffs and the class 
they represent are beneficiaries of that act and thereby 
“ have standing to assert their Section 601 rights.”  When 
defendants herein “ accepted federal financial assistance 
[they] thereby brought [Norwalk’s relocation program]



27

within the class of programs subject to the Section 601 pro­
hibition against discrimination. The Negro [and Puerto 
Rican individuals and families] as beneficiaries of the Act, 
have standing to assert their Section 601 rights.”

The Green Street case, supra, also purports to touch 
upon Section 601. For the purpose of determining stand­
ing of the plaintiffs to sue under Section 10 of the Admin­
istrative Procedure Act as persons who have suffered 
“ legal wrong”  the District Court in Green Street held that 
Title V.I created no rights in the plaintiffs there. Signifi­
cantly, while the opinion discussed who is a recipient of 
Federal assistance under 42 U.S.C. 2000d-l, there is no 
consideration whatever of the unequivocal language of 42 
U.S.C. 2000d set forth above.

On appeal, however, the Court of Appeals for the Sev­
enth Circuit while affirming the result below, severely lim­
ited the effect of that opinion insofar as 42 U.S.C. 2000d 
was concerned.

With respect to the Green Street plaintiffs’ arguments 
concerning rights under 42 U.S.C. 2000d, the Court of 
Appeals noted (at 8 of 373 F.2d) :

“ The plaintiffs’ remaining contention with respect 
to Count IV is that the [Urban Renewal] Plan’s 
‘ recognition’ of the segregated nature of residential 
facilities in Chicago subjects them to ‘ discrimina­
tion under [a] program . . . receiving Federal finan­
cial assistance’ within the meaning of section 601 of 
the Civil Rights Act of 1964 [42 U.S.C. 2000d] and 
that this section implicitly confers standing upon 
them to sue to enjoin violations of it. As to the fed­
eral defendants, the plaintiffs’ argument is erro­
neous in that it ignores the remaining section of 
Title VI of the act. . . . ”

As to the local defendants, however, the Court specifically 
avoided ruling on the applicability of Lemon v. Bossier 
Parish School Board, supra, but affirmed the dismissal of



28

Count IV by the court on the ground that it failed “ to 
state a claim upon which relief can be granted”  (at 9 of 
373 F.2d).

In the only reported decision touching § 601 subsequent 
to the Seventh Circuit’s opinion in Green Street, which in­
terestingly enough arose within that Circuit, the district 
court was faced with a seeming contradiction between 
Lemon and Green Street. The court in Gautreaux v. Chi­
cago Housing Authority, 265 F. Supp. 582, 583, 584 (N.D. 
111., E.D. 1967) noted:

“ Defendants move to dismiss Count II, predi­
cated on Section 601 of the Civil Rights Act of 1964, 
42 U.S.C. 2000d, for failure to state a claim under 
that section. Defendants’ position has been con­
sidered and rejected in Bossier Parish School Board 
v. Lemon, 370 F.2d 847, 5th Cir., January 5, 1967. 
While much is to be said for defendants’ position 
in light of the legislative history surrounding the 
enactment of Title VI of the Civil Rights Act of 
which Section 601 is a part, and in light of the rea­
soning found in Judge Robson’s opinion in Green 
Street Association v. Daley, 250 F. Supp. 139 (N.D. 
111. 1966), a ff’d on other grounds, 373 F. 2d 1, 7th 
Cir., January 25, 1967, the Court feels compelled to 
adhere to the construction of Section 601 found in 
Lemon and not specifically disapproved by Court 
of Appeals for the Seventh Circuit when confronted 
with an opportunity to do so in Green Street Asso­
ciation v. Daley, supra. Defendants’ motion to dis­
miss Count II is therefore denied.”

In light of the Lemon and Gautreaux cases, it is appar­
ent that plaintiffs’ claims for relief under Section 601 should 
be sustained.



29

I I

The action was properly maintainable as a class 
action.

Judge Zampano below treated as the “ threshold ques­
tion”  (10a) the matter of whether the action had been prop­
erly brought as a class action under Rule 23, FRCP. 
Plaintiffs submit that the Court below has confused 
the concepts of the class which must be found as a 
prerequisite to maintaining a class action under this rule, 
and the class—or more precisely, the persons—who will 
benefit from whatever relief may be granted. These two 
groups will not always be the same.

Thus, for example, if a Negro attempts to gain admit­
tance to a swimming pool and is refused because of his 
race, and commences a class action on behalf of all Negroes 
in that City to desegregate that pool, the group that will 
benefit from that relief will of necessity be larger than and 
indeed may be different from the group represented in the 
class action. It would include Negroes who moved into 
that City after adjudication, and Negroes who never sought 
to use the pool and even persons unborn.

The fact that the aggrieved class is or may be different 
from the class which benefits from the relief granted is 
graphically illustrated in Hamer v. Campbell, 358 F.2d 215 
(5th Cir. 1966), and the District Court memorandum on 
remand, sub nom. Hamer v. Ely (N.D. Miss., Greenville 
Div., No. GC6522, Feb. 15, 1967). There, a class of Negroes 
comprised of those who were registered after a federal 
court had ordered fair registration procedures brought suit 
to enjoin the holding of a municipal election. They argued 
that because of discriminatory state action they were able 
to register for the first time only within two months of the 
election, which disabled them, under State law, from voting 
in that election. The Court of Appeals for the Fifth Cir­
cuit reversed the District Court and held that since the



30

election should have been enjoined, it was necessary to have 
a new election. As the original class, only those Negroes 
who were registered within the two month time span were 
found to be representative of a class. However, on remand, 
and upon the mandate of the Court of Appeals, the District 
Court entered an order which set a new election and voided 
the original. In this new election everyone who registered 
before a cut-off date set after the date of the District 
Court’s order, was eligible to vote:

“ Because of the unsual requirements of the de­
cree needed here, counsel are directed to confer 
promptly to settle the form and to prepare the de­
cree for entry in accordance with the following:

“ 1) To set aside the municipal elections in Sun­
flower and Moorhead.

“ 2) To provide for new general elections in these 
two municipalities under the general election laws 
of the State of Mississippi (except as noted here­
after) under the supervision of the election commis­
sion of each municipality.

“ 3) To provide a cut off date for new registra­
tions sixty days before the election date.”

(Op. of D.C. on remand, supra, at 2, 3)

There, people who were not members of the class because 
they had not registered at the time the suit was filed, were 
still eligible to participate in the benefits of the class action.

Thus, as the Hamer case amply demonstrates, the mat­
ter of the relief to be granted and who the beneficiaries of 
the relief are to be has no relevance in considering the 
appropriateness of the class action in the first instance. 
Plaintiffs have alleged that persons were displaced from 
their homes in the urban renewal area and not properly re­
located, subjected to discrimination, etc., that all of the low- 
income Negroes and Puerto Ricans were so subjected to 
discrimination because of the housing situation in the City



31

of Norwalk. Even assuming that all of the persons dis­
placed were relocated in one fashion or another, the fact 
remains that according to the allegations of the complaint 
they were subjected to discriminatory housing accommoda­
tions brought about through the demolition of their homes 
in the project area; further, these homes were demolished 
with the purpose and intent of forcing those persons out of 
the City; and further, they were not relocated according 
to the statutory requirements.

This raises questions of fact common to the class of 
all low income Negro and Puerto Ricans formerly living 
within the project area. The basic question of whether the 
destruction of their homes in the project area and the fail­
ure to construct new low rent housing necessarily subjected 
these persons to discrimination is a fact question common 
to the entire class, regardless of whether the effect of being 
subject to this discrimination varied throughout the class. 
As stated in Hall v. Werthan Bag Corp., 251 F.Supp. 184, 
186 (M.D. Tenn. 1966) :

“ Although Rule 23(a) has often been invoked in 
cases challenging a policy which is illegally discrimi­
natory on its face, several courts, doubting the ex­
istence of a common question of law or fact, have 
held that class actions are not proper in cases chal­
lenging the practice of discrimination which occurs 
apart from an avowed policy of discrimination. For 
purposes of allowing a class action for injunctive 
relief, however, this court is unable to perceive any 
real distinction between a policy which is discrimi­
natory on its face and a policy which is shown to 
exist and to be discriminatory only by an analysis 
of its application, or, as the defendant structures 
it in its brief, between a class discrimination because 
of race and an individual discrimination because of 
race. Racial discrimination is by definition a class 
discrimination. If it exists, it applies throughout 
the class. This does not mean, however, that the 
effects of the discrimination will always be felt 
equally by all the members of the racial class. For



32

example, if an employer’s racially discriminatory 
preferences are merely one of several factors which 
enter into employment decisions, the unlawful pref­
erences may or may not be controlling in regard to 
the hiring or promotion of a particular member of 
the racial class. But although the actual effects of 
a discriminatory policy may thus vary throughout 
the class, the existence of the discriminatory policy 
threatens the entire class. And whether the I)amo- 
clean threat of a racially discriminatory policy 
hangs over the racial class is a question of fact 
common to all the members of the class. The court 
is of the opinion, therefore, that a significant ques­
tion of fact common to all members of the class ex­
ists in this case insofar as the complaint seeks 
the removal of the alleged discriminatory policies.”

An in Wittkamper v. Harvey, 188 F. Supp. 715 (M.D. 
Ga. 1960), a class action was brought to enjoin a school 
board

. from refusing to consider and grant, in the 
absence of legitimate objection, the applications of 
the plaintiffs and other qualified students_ who are 
members [of] or connected with Koinonia Farm, 
upon the same terms and conditions applicable to 
[other] White children who are residents of Sum­
ter County and who seek admission to the Americus 
City School System. . . . ”  (At 716 of 188 F. Supp.)

The defendant school board there claimed that there was 
no class represented by plaintiffs and the action should not 
be treated as such. The court held otherwise:

“ Defendants have raised the question whether 
the present action is properly a class action. The 
court finds that other children residing at Koino­
nia Farm attend grammar school at Thalean School 
in the County system. Although no evidence was 
adduced at the hearing of any other students resident 
at Koinonia Farm who presently desire to transfer 
to the City system, in all probability when other 
Koinonia Farm children finish Thalean School some



33

will desire to transfer to Americas High School. 
Therefore, the present action is properly a class ac­
tion within the meaning of Fed. R. Civ. P. 23.”  (At 
721 of 188 F. Supp.)

The Court below erred when it found “ no questions of 
fact common to the class”  because there were “ divergent 
factual circumstances”  regarding the nature of the housing 
to which the displaced families relocated (11a). The Court 
below apparently confused the varied effects of a discrimi­
natory condition imposed upon the class by state action with 
the fact question common to the class as to whether that 
class had been subjected to a discriminatory condition by 
reason of state action.

The Court below further erred in finding no issue of 
law common to the class since defendants conceded their 
obligation under 42 U.S.C. 1455 to provide decent, safe 
and sanitary dwellings within the financial means of the 
displaced persons (lOa-lla). Clearly there remained issues 
of law common to the class as to whether members of the 
class have standing to enforce this conceded obligation, 
whether the conduct of defendants as alleged in the com­
plaint violated the equal protection clause of the Fourteenth 
Amendment and as to whether members of the class have 
standing to complain of the deprivation of equal protection 
of the laws resulting from the conduct of defendants in 
carrying out the urban renewal program.

Insofar as the other three requirements of Rule 23(a) 
are concerned, it appears that the Court below found com­
pliance therewith since its discussion of this section is lim­
ited to the issue of whether there were questions of law or 
fact common to the class.

Plaintiffs further submit that the requirements of sub­
division (2) of Rule 23(b) are amply complied with.*

* The question of whether final injunctive relief is appropriate 
under Rule 2 3 (b ) (2 )  is discussed below at pp. 41-45.



34

Plaintiffs asserted below that defendants ’ action has treated 
plaintiffs and others as a class in that defendants so acted 
with knowledge that low-income Negroes and Puerto Ricans 
would suffer hardship in connection with housing not suf­
fered by whites; in that defendants intended to drive low- 
income Negroes and Puerto Ricans from the City; and 
in that low-income Negroes and Puerto Ricans out of all 
relocatees from the project area were not properly relo­
cated. Manifestly, defendants have treated plaintiffs and 
others as a separate class and relief directed to their benefit 
is appropriate under subdivision (2).

With respect to class actions under (b)(2) the Advisory 
Committee has noted (3 Moore’s Federal Practice, 2d Ed., 
1966 Cum. Supp., 236, 237):

“ Action or inaction is directed to a class within the 
meaning of this subdivision even if it has taken 
effect or is threatened only as to one or a few mem­
bers of the class, provided it is based on grounds 
which have general application to the class.

“ Illustrative are various actions in the civil- 
rights field where a party is charged with discrimi­
nating unlawfully against a class, usually one whose 
members are incapable of specific enumeration. See 
Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Bailey 
v. Patterson, 323 F.2d 201 (5th Cir. 1963), cert, de­
nied, 377 U.S. 972 (1964. . . . ”

In Potts v. Flax, 313 F.2d 284 (5th Cir. 1963), the Court 
of Appeals for the Fifth Circuit, noted (at 289, 290):

“ By the very nature of the controversy, the attack 
is on the unconstitutional practice of racial discrimi­
nation. Once that is found to exist, the Court must 
order that it be discontinued. Such a decree, of 
course, might name the successful plaintiff as the 
party not to be discriminated against. But that de­
cree may not—either expressly or impliedly—affirma­
tively authorize continued discrimination by reason 
of race against others. Cf. Shelley v. Kraemer,



35

1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ect. 1161. More­
over, to require a school system to admit the spe­
cific successful plaintiff Negro child while others, 
having no such protection, were required to attend 
schools in a racially segregated system, would be 
for the court to contribute actively to the class dis­
crimination proscribed by Bush v. Orleans Parish 
School Board, 5 Cir., 1962, 308 F.2d 491, 499, on re­
hearing 308 "F.2d 503; see also Ross v. Dyer, 5 Cir., 
1962, 312 F.2d 191. The effect of this last consid­
eration is to afford additional basis for affirmance. 
In this light, if it was an error to treat the case as 
a class suit and enter such a decree, such error, if 
any, was harmless since the decree for all practical 
purposes would have been the same had it been con­
fined to the Teal or Flax children. ’ ’

And in Bailey v. Patterson, 323 F,2d 201 (5th Cir. 1963), 
the Court, citing its language in Potts, stated (at 206):

“ We find it unnecessary to determine, however, 
whether this action was properly brought under 
Rule 23(a), for whether or not appellants may prop­
erly represent all Negroes similarly situated, the 
decree to which they are entitled is the same. Appel­
lants do not seek the right to use those parts of segre­
gated facilities that have been set aside for use by 
‘whites only.’ They seek the right to use facilities 
which have been desegregated, that is, which are 
open to all persons, appellants and others, without 
regard to race. The very nature of the rights appel­
lants seek to vindicate requires that the decree run 
to the benefit not only of appellants but also for all 
persons similarly situated.”

In the instant case, the one overall class sought to be 
represented is low-income Negro and Puerto Ricans who 
lived in Norwalk during the Urban Renewal program there 
and who were subjected to discrimination on account 
thereof. This discrimination resulted from massive state 
action in the form of an urban renewal program, whereby 
the defendants, with knowledge (first claim), actual in­



36

tent (second claim), and in violation of their agreements 
and federal statutes (third claim), followed a consistent 
pattern and practice which resulted in subjecting and im­
posing upon plaintiffs and others a severely restricted and 
discriminatory housing market.

Under the facts alleged, a class action could appropri­
ately be found under 23 (b )(1 )(A ) as separate actions 
would run the “ risk of inconsistent or varying adjudica­
tions with respect to individual members of the class which 
would establish incompatible standards of conduct for the 
party opposing the class.”  The Notes of the Advisory 
Committee on the Buies list, as an illustration of this class, 
suits by citizens to invalidate a municipal bond issue. The 
litigation at hand, suits by citizens to, among other things, 
invalidate a municipal sale of land, is very similar as ‘ ‘ in­
consistent results in individual litigation would put the 
party subject to court orders in a dilemma, and a class ac­
tion provides a ready and fair means of achieving unitary 
adjudication.”  Barron and Holtzoff, Federal Practice and 
Procedure (1966 Pocket Parts), Yol. 2, Sec. 562 at p. 67.

Thus, the Court below erred when it concluded that the 
present action did not meet all four of the requirements of 
subdivision (a) of Buie 23 and at least one of the require­
ments of subdivision (b) of Buie 23.

I I I

Even if this action were not properly brought as 
a class action, the Court below erred in dismissing 
upon that basis.

Buie 23 quite clearly indicates that it was never in­
tended to operate in such manner as to bar completely a 
suit which was commenced as a class action but failed as 
such. The language in subdivision (b) that “ [a]n action 
may be maintained as a class action if the prerequisites”



37

therefor are met suggests on its face that the action, if it 
does not meet those prerequisites nevertheless continues.

Subdivision (c) (1) notes that:
“ As soon as practicable after the commencement 

of an action brought as a class action, the court shall 
determine by order whether it is to be so maintained. 
An order under the subdivision may be conditional, 
and may be altered or amended before the decision 
on the merits.”

This language clearly indicates that the action continues 
to be maintained though the court may find it is not appro­
priately a class action. And the fact that the order “ may 
be altered or amended”  clearly provides that where the 
original order finds that the suit cannot be “ maintained”  
as a class action, this order can be changed to provide for 
its maintenance as a class suit. This obviously envisions 
continuation of the case as an action other than a class 
action if the court finds the prerequisites not met.

This view is further reinforced by the specific provisions 
of subdivision (d) of Rule 23:

“ In the conduct of actions to which this rule ap­
plies, the court may make appropriate orders: . . . 
(4) requiring that the pleadings be amended to 
eliminate therefrom allegations as to representation 
of absent persons, and that the action proceed ac­
cordingly; . . . ”

In the Advisory Committee’s Note to this new Rule 
23 (3 Moore’s Federal Practice, 2d Ed., 1966 Cum. Supp., 
233, at 239) it is noted that:

“ A determination once made can be altered or 
amended before the decision on the merits if, upon 
fuller development of the facts, the original deter­
mination appears unsound. A negative determina­
tion means that the action should he stripped of its 
character as a class action. See subdivision (d)(4). 
Although an action thus becomes a nonclass action,



the court may still be receptive to interventions 
before the decision on the merits so that the litiga­
tion may cover as many interests as can be con­
veniently handled; . . . ”  (emphasis added)

There is nothing which indicates that the new Buie 
23 was intended to change the well established court prac­
tice of recognizing the survival of an action as an indi­
vidual action if a class action is found to be not proper. 
Thus, in Lyon v. Atlantic Coast Line R. Co., 224 F.Supp. 
1014, 1017 (W.D.S.C. 1964), the Court stated:

“ And, Buie 23, Federal Buies of Civil Procedure, 
in providing for class actions has never been inter­
preted so as to deprive a person of an individual 
claim if such claim would have existed in the absence 
of the rule. G-iesecke v. Denver Tramway Corpora­
tion, 31 F.Supp. 957, (D.C.Del.). See also, 35A 
C.J.S. Federal Civil Procedure Sec. 63, et seq. ”

In Clark v. Thompson, 206 F.Supp. 539 (S.D.Miss. 1962), 
aff’d 313 F.2d 637 (5th Cir. 1963), cert, den., 375 U.S. 951, 
where plaintiffs claimed to represent “ all Negroes in Jack- 
son [Miss.] . . .  all Negroes in the United States . . .  all 
races of people in the W orld,”  (at 541 of 206 F.Supp.) the 
Court there held:

“ This is not a proper class action, and no relief 
may he granted other than that to which the plain­
tiffs are personally entitled.”  (Emphasis added; 
at 542 of 206 F.Supp.)

See also Harris v. Palm, Springs Alpine Estates, Inc., 
329 F.2d 909, 913 (9th Cir. 1964).



39

I V

The named association plaintiffs have standing to 
bring this action.

The Court below found that the three association plain­
tiffs did not have standing as parties to a class action since 
the associations “ are not themselves members of the class 
whose rights they claim to be asserting”  (13a). However, 
the Court did not directly consider the standing of the asso­
ciations to bring the action on behalf of their members; it 
did consider the associations’ standing to represent the 
classes to which their members belong.

It is now quite firmly established that the associations 
such as the three herein may properly bring an action on 
behalf of their members. In NAACP v. Alabama, 357 U.S. 
449, 458 (1958), the Supreme Court, in considering the 
right of the NAACP to litigate on behalf of its members, 
stated: “ We think that petitioner argues more appro­
priately the rights of its members, and that its nexus with 
them is sufficient to permit that it act as their representa­
tive before this Court.”  This view was reaffirmed in Loui­
siana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, where 
the Court cited NAACP v. Alabama stating, “ It is clear 
from our decisions that NAACP has standing to assert 
the constitutional rights of its members.”  In Bates v. Little 
Rock, 361 U.S. 516, 523, at n. 9, the Court, by wray of footnote, 
made it clear that an organization in this posture has the 
right to assert the Constitutional rights of its members: 
“ The cities do not challenge petitioners right to raise any 
objections or defenses available to their organizations, nor 
do the cities challenge the right of the organizations in these 
circumstances to assert the individual rights of their mem­
bers. Cf. NAACP v. Alabama, 357 U.S. 449, at 458-459.”

The same proposition is reaffirmed in NAACP v. Button, 
371 U.S. 415, cited by the Court in Bates above: “ We also



40

think petitioner has standing to assert the co-responding 
rights of its members.”  The concurrence of Mr. Justice 
Frankfurter in Joint Anti-Fascist Refugee Committee v. 
McGrath, 341 U.S. 123, 151-154 (1951) (cited by Judge 
Zampano, below, for the contrary conclusion), finds standing 
on the part of the Committee to assert rights of its members. 
In the recent case of Dombroivski v. Pfister, 380 U.S. 479, 
one of the plaintiffs was the organizational plaintiff, South­
ern Conference Educational Fund, who asserted the rights 
of its members.

The Court below noted that in the cases relied upon by 
plaintiffs the associations, themselves, were subjected to the 
state action complained against. However, the basis of 
these decisions, plaintiffs submit, was not the association’s 
being subjected to the conduct in question but rather the 
“ nexus”  between the association and the members. In the 
instant case, where the associations have represented their 
members before defendants in regard to the conduct of 
the defendants which is the subject of this action and where 
the associations are substantially if not entirely composed 
of low-income Negroes and Puerto Ricans who have suf­
fered discriminatory housing conditions because of defend­
ants ’ conduct (19a-21a), there is a sufficient “ nexus”  
between the associations and its members so as to permit 
the associations to bring the action on behalf of their 
members regardless of whether the associations themselves 
were affected by defendants’ conduct.

In regard to the conclusion of the Court below that plain­
tiff associations cannot maintain a class action on behalf 
of the class to which their members belong because they, 
themselves, are not members of the class, plaintiffs urge 
this Court to adopt the analysis of association standing 
set forth in Sedler, Robert A., “ Standing to Assert Con­
stitutional Jus Tertii in the Supreme Court,”  71 Yale Law 
J. 599 (March 1962). It is proposed therein that when 
the rights of members of a class are affected because of



41

class membership, an organization which has as its purpose 
the protection of interests of the class should have stand­
ing to assert the rights of the class members. This pro­
posal would be directly applicable to the situation herein 
where class members are affected because of their race 
and poverty, and the organizations seeking to represent 
them have as their purpose the protection of these interests.

V

Where the equitable jurisdiction of the Court is 
invoked the Court may fashion and grant any appro­
priate equitable relief and is not confined to the par­
ticular relief requested in the complaint.

The Court below viewed the injunctive relief sought 
by plaintiffs as extreme, “ almost dictatorial”  (13a). This 
view is not only applied by the Court in finding that the 
instant suit did not fall within Rule 23(b)(2),* but per­
meates the entire decision.** The position of the Court 
below in restricting its examination of the present suit in 
general and of compliance with Rule 23(b)(2) to the 
particular injunctive relief requested is contrary to the 
governing law.

It has long been recognized that courts of equity have 
broad powers in fashioning appropriate relief.

“ Courts of equity have always had broad powers 
of discretion. Courts of equity should be excellent 
judges as to what findings and what orders are 
appropriate and necessary in any particular case.

* Except for the instant question of appropriate injunctive relief, 
the issue of whether the instant suit was properly brought as a class 
action is discussed above in Point II.

** Thus, in concluding that Cart v. Cole, supra, did not aid 
plaintiffs herein, the Court stated that tenants do not “ have a right 
to drastic judicial intervention. . . (72a). The errors in the
analysis of Cart by the Court below are discussed supra, at pp. 21-24.



42

Discretion is a traditional attribute of equity. 
‘ Traditionally, equity has been characterized by a 
practical flexibility in shaping its remedies and by 
a facility for adjusting and reconciling public and 
private needs.’ Brown v. Board of Education, 349 
U.S. 294, 300, 75 S. Ct. 753, 766, 99 L. Ed. 1083 
(1955).”

U.S. v. Raines, 203 F. Supp. 147, 150 (M.D. Ga.
1961).

It has been succinctly stated that: “ A  court of equity 
has power to render such relief as is justified under all the 
circumstances.”  Jones v. Amerlagene, Inc., 39 F. Supp. 
495, 498 (W.D, La., 1941).

Recognition of this broad and expansive power has 
carried with it recognition that no matter what relief may 
be prayed for, if the claim “ upon its face presents a case 
for any relief, it will not be dismissed.”  Geiger v. First- 
Troy National Bank d  Trust Co., 30 F. 2d 7, 9 (C.C.A. 6th 
Cir. 1929). See also Western Union Tel. Co. v. Western 
and Atlantic R. Co., 91 U.S. [1 Otto] 283 (1875).

In Bowles v. Leithold, 60 F. Supp. 909, 912 (E.D. Pa. 
1945), aff’d 155 F. 2d 124 (C.C.A. 3rd Cir. 1945) it was

“  . . . strongly urged on behalf of the defendants 
that the decree prayed for by the Administrator is 
too broad in that the effect of paragraph D thereof 
is to require compliance with the maximum price 
provisions of the General Maximum Price Regu­
lation and Maximum Price Regulation No. 220, 
whereas the bill of complaint alleges only violation 
of the record keeping requirements of those Regula­
tions.

“ It is an undisputed precept of long standing 
that applications to an equity court for relief are 
addressed to the sound discretion of the court, and 
such relief may be granted as the court deems 
desirable and necessary in the interests of the parties 
under the circumstances in which they appear before 
the court. . . . ”



43

Manifestly, it does not need any argument to demon­
strate that if a federal court, in the exercise of its equity 
jurisdiction can fashion relief broader than that prayed 
for, it can grant the same relief or less than that sought. 
The remedies of courts of equity

“  . . . are flexible and may be suited to the justice 
and exigencies of the particular case. ‘ A court of 
equity does not feel itself bound to a rigid applica­
tion of a rule * * * in order to give proper relief 
# * * . ’ Sabre v. United Tract., Etc., Co., C.C., 157 
F. 79, 83. It will adjust and conform the relief in 
such manner as to afford a fair recognition of the 
rights of all parties, the primary object being to 
reach the ends of justice.”

Overfielcl v. Pennroad Gorp., 42 F. Supp., 586, 
616 (E.D. pa. 1941), Supp. Opin., 48 F. Supp. 
1008 (1943), aff’d 146 F. 2d 889 (C.C.A. 3rd 
Cir., 1944).

C f.: Kansas v. Colorado, 185 U.S. 125, 145 (1901).
The cases which support the principle that a complaint 

in equity will not be dismissed if the allegation will support 
any relief are too numerous to cite here. Yet it is clear 
that the court below has failed to follow7 this recognized 
principle. Indeed, the Court completely ignored it.

Presumably as part of his basis for dismissal upon the 
grounds of failure to meet the class prerequisites of Rule 
23, Judge Zampano has noted that “ the injunctive relief 
sought is not appropriate”  (13a) and he soon after re­
iterates this by again noting that the “ scope of injunctive 
relief sought here is not appropriate.”  Judge Zampano’s 
discussion in this paragraph on appropriateness goes 
directly to the word “ appropriate”  in (b)(2) of Rule 23. 
The court below obviously felt that the particular relief 
sought in the complaint must be “ appropriate”  and if it 
was not, one of the prerequisites for maintaining a class 
action is not met. This argument not only ignores the



common law background concerning the powers of a court 
of equity discussed above, but it is also in conflict with the 
proper English construction of Rule 23(b)(2). In per- 
tient part this Rule provides :

“ An action may be maintained as a class action 
if . . . the party opposing the class has acted . . .  on 
grounds generally applicable to the class, thereby 
making appropriate final injunctive relief or cor­
responding declaratory relief with respect to the 
class as a whole; . . . ”

Nowhere in the language of Rule 23(b)(2) is there any 
indication that the final injunctive relief which is made 
appropriate by the acts of the party opposing the class 
on grounds generally applicable to the class must be the 
relief requested by the complaint in order to come within 
Rule 23(b)(2). In order to reach Judge Zampano’s re­
strictive view of the phrase “ final injunctive relief”  in the 
Rule, one must add to those words the limiting phrase, 
“ as requested in the complaint” .

The reason for the absence of any such restriction to 
the final injunctive relief which is made appropriate is 
clear. The Advisory Committee’s Note (3 Moore’s Fed. 
Pract. 2d Ed., 1966 Cum. Supp. 236) states:

“ This subdivision is intended to reach situations 
where . . . final relief of an injunctive nature or of 
a corresponding declaratory nature, settling the 
legality of the behavior with respect to the class 
as a whole, is appropriate.”

Obviously, the intended scope of this subdivision is not 
realized if the appropriateness of injunctive relief that will 
settle the defendant’s behavior with respect to the class 
as a whole is restricted to that particular relief requested 
in the complaint.

From the above discussion of the common law view 
of the powers of a court of equity to fashion such relief



45

as it finds to be appropriate, whether it be that relief 
sought or other relief, and from the discussion of the 
use of “ appropriate”  in Rule 23(b)(2), it is clear that 
Judge Zampano’s reading of that section is erroneous.

It is further clear that even if the relief sought by 
plaintiffs is not appropriate relief, nevertheless some in­
junctive relief is appropriate upon the grounds alleged in 
the complaint. The complaint alleges that as a result 
of defendants’ conduct plaintiffs and others similarly situ­
ated are living in housing at excessive rentals (32a) under 
sub-standard and overcrowded conditions (31a-32a). The 
complaint further alleges that other of the plaintiffs and 
those similarly situated are living in on-site housing struc­
tures which are unsafe and unsanitary (30a) and that 
defendants threaten to imminently demolish the remaining 
on-site houses (31a) notwithstanding defendants’ knowl­
edge that there is no decent and safe housing available in 
the City of Norwalk for low-income Negro and Puerto 
Rican families within their financial means (31a). Plain­
tiffs have been subjected to these conditions because they 
are low-income Negroes and Puerto Ricans (28a). Clearly 
under these allegations some injunctive relief is appro­
priate to (1) secure decent and sanitary housing at rentals 
within the plaintiffs’ financial means whether by directing 
defendants to construct low cost housing units on the 6 acre 
parcel or other parcels of land or to acquire existing 
housing units, (2) improve and repair the on-site housing 
structures now occupied by low-income Negroes and Puerto 
Ricans whose homes have been demolished, and (3) enjoin 
defendants from demolishing the on-site housing until the 
occupying families have been properly relocated.



46

CONCLUSION

For the above-stated reasons the judgment below 
should be reversed and an immediate hearing ordered 
on plaintiffs-appellants’ motion for preliminary in­
junctive relief.

Respectfully submitted,

L ubell and L ubell, 
Attorneys for Plaintiffs-Appellants.

Of Counsel:
J onathan  W . L ubell , 
S tephen  L. F in e , 
D en n is  J. R oberts.



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